The Use of Human Rights Legislation in the Scottish Courts

THE USE OF HUMAN RIGHTS LEGISLATION IN THE SCOTTISH COURTS

4.1 In Chapter Three, we analysed the post-devolution human rights case law in terms of the specific rights protected by the Convention. In this chapter we examine the case law from two different perspectives:

a functional analysis of its effect on different areas of Scots law and public policy

the general approach of the judiciary to arguments based on Convention rights.

The purpose of the former is to give a clearer picture than would emerge from Chapter Three of the significance of human rights litigation to date for different subject areas of law and policy. We thought that this would be of value to persons working in the relevant fields of law and policy. This inevitably involves some repetition of material from the previous chapter but we have tried to keep this to a minimum be referring back to the discussion in chapter three in many places. Following on from this functional analysis, we also discuss the type of consequence successful challenges have had (change in the law, change in policy etc.), before proceeding to discussion of the approach of the judiciary.

FUNCTIONAL ANALYSIS

4.2 This section will examine the impact of the cases on different areas of law and policy. It includes comment both on challenges to existing laws and policies and their application and on challenges which might reasonably have been expected but have not yet been made. In relation to the first category we comment both on successful and on unsuccessful challenges. In relation to the second category, as in the previous chapter, we identified challenges as possible - if they met any of the following criteria:

existing Strasbourg case law could be read as implying that existing arrangements may not be Convention-compliant;

challenges under the Convention have been made elsewhere in the UK and the laws/policies/practices in question are sufficiently similar;

even where the first two points do not apply, the issue is a recurring one and there is something about the issue that leads us to think that individuals may be expected to exploit any possible avenue of legal redress (for example, deaths in custody).

4.3 There is no attempt to provide a comprehensive account of all areas of law and policy which might in principle be affected by the human rights legislation. Instead we consider only a selection of areas in which there has been, or we might have expected a significant impact. These are:

criminal justice (including policing, sentencing and parole)

civil justice

family and child law

education

health care

environment and planning

immigration control

Criminal justice: challenges to date

4.4 Challenges to the organisation of the court system have arisen in a series of cases, which are summarised below.

The independence of judges

4.5 The decision in Starrs v Ruxton ( see 3.29) led to the discontinuation of the use of temporary sheriffs (and in turn, to reforms in the appointment of members of other tribunals), although challenges to the positions of temporary judges in the Court of Session and assessors in the district courts did not succeed ( see 3.30). A separate challenge to the position of temporary High Court judges has not yet been resolved. Hoejkstra (No 2) helped to clarify the acceptable limits of judicial participation in media discussion of matters of contemporary interest related to the legal system.

Grounds for determining release pending trial

4.6 Burn, Petitioner gave guidance on the extent and nature of information a prosecutor must provide, in the light of Article 5, when opposing bail ( see 3.20).

Pre-trial press publicity

4.7 The courts have tended to reject claims that prospects of a fair trial have been unduly prejudiced by pre-trial publicity, relying on the ability of juries disregard prejudicial information by following the directions of the presiding judge ( see 3.33).

Legal certainty and the definition of particular crimes

4.8 Challenges to the breadth of the definition of the common law offence of breach of the peace have not succeeded on the particular facts of the cases presented. On the other hand, the legal foundation for shameless indecency was successfully attacked but in that case arguments based on the Convention had little, if any, influence on the outcome ( see 3.35).

Contempt of court and prevaricating witnesses

4.9 The imposition of sanctions on prevaricating witnesses were challenged in a handful of cases which arguably could have given rise to a successful challenge in Strasbourg. However, a practice direction has been issued to judges that is likely to address any shortcomings in this matter ( see 3.30).

Sentencing and Prisons

4.10 Pre-emptive action was taken by the Scottish Executive and Scottish Parliament in this area in enacting legislation to address likely Convention concerns, particularly in respect of adult mandatory life prisoners and the appointment of members to the Parole Board. However, as described in Chapter Three, the application of the new rules for setting the 'punishment period' of mandatory life sentences for existing prisoners was challenged in several cases leading to a Convention-compatible interpretation of the legislation.

4.11 Pre-emptive action was also taken by the Scottish Executive when it reduced the range of disposals available in prison disciplinary cases, even though it is not clear that these would involve Article 6 considerations.

4.12 Conditions in Scottish prisons, including 'slopping out', were successfully challenged in Napier but, given that it turned to some extend on its own facts, and that it is under appeal, it is not yet clear whether a change in policy or practice affecting all prisoners will be necessary ( see 3.11-3.12).

Delays in the prosecution of criminal charges

4.13 A significant number of cases have involved challenges to the time taken to determine a criminal charge. There have been two major issues for the domestic courts to resolve: first, whether the particular facts suggest a violation of the 'trial within a reasonable time' guarantee; and second, the implications of any finding that there has been undue delay ( see 3.32). In respect of the first issue, it is clear that the courts now expect an explanation for any apparent undue delay. 83 The issue of inadequate resources has featured in certain of our cases: the courts have appeared to acknowledge that prosecutors require to prioritise work, and also to discount delay which is not indicative of systemic under-resourcing (delay not attributable to particular pressures), although in another case the court observed that the state signatories to the European Convention on Human Rights were under an obligation to provide the facilities necessary to proceed with prosecutions in a reasonable time. The fact that some 40% of all criminal cases raising a human rights issue included the argument of undue delay could raise the question of whether there is a systemic problem, but exploration of this issue would have been beyond the remit of this research.

Criminal justice: possible challenges

4.14 There are a number of aspects of criminal justice to which challenge might have been expected, but where challenges have yet to be made. The list discussed is far from exhaustive:

Investigating complaints against police officers where the allegation involves a possible violation of Article 3 (the positive obligation - the so-called 'procedural aspect - of Article 3 is unlikely to be met by existing practices);

Prison issues - dangerous prisoners; and suicide prevention (there are now heightened expectations as far as Strasbourg case law (some of which involves the United Kingdom) is concerned. In particular, prevention of harm to detainees (whether self-inflicted or inflicted by others) involves positive state obligations;

The defence of 'reasonable chastisement' in criminal prosecutions of assaults on young people ( see 3.13);

Electronic 'tagging': developments in criminal procedure which seek to reduce the number of remand prisoners through electronic tagging or similar devices may require some greater consideration of Article 5 guarantees since certain disposals may well be considered a de facto 'deprivation of liberty' ( see 3.21);

First appearance before a judge (the requirement under Article 5(3) that a person detained on suspicion of the commission of an offence is brought 'promptly' before a judge may not always be met because of court holidays) ( see 3.21);

Interception of prisoners' telephone conversations (routine monitoring of telephone conversations may still give rise to possible challenge) ( see 3.41).

Civil justice

4.15 There has been less successful use made of European Convention on Human Rights arguments in cases involving the delivery of civil justice. The key areas of challenge can be summarised as follows:

Restrictions on access to courts (the question of caution) ( see 3.28).

Legal aid in children's hearings ( S v Miller commented adversely on the absence of legal aid in respect of children's hearings, a deficiency which was put right by the Convention Rights (Compliance) (Scotland) Act 2001) ( see 3.28);

The General approach towards curing defects which have arisen at an earlier stage in proceedings ( see 3.25);

'Equality of Arms' (there has been a number of cases relating to professional disciplinary tribunals ( see 3.26).

Civil Justice: possible challenges

4.16 The possible challenges not yet made include:

Lack of legal aid in disciplinary hearings before professional bodies where such proceedings fall within the scope of Article 6;

Children's hearing system (one aspect of the children's hearing system that perhaps still give cause for concern is the line taken by the Scottish courts - that after a decision by the procurator fiscal not to proceed with a charge against a child, subsequent proceedings under the Children (Scotland) Act 1995 are not criminal for the purposes of Article 6 ( see 3.18, 3.32);

Defamation (the possibility of being sued for defamation even when the defamatory material is published only to the pursuer may well be a disproportionate restriction of freedom of expression);

Privacy (the Scottish courts have not yet grappled with the difficult privacy issues arising in case such as Campbell v Mirror Group Newspapers [2004] UKHL 22.

Family and child law

4.17 Arguments based on Convention rights have had little impact in cases of a private law nature, for example, in claims by unmarried fathers for the award of parental rights, or claims by parents in relation for contact. On the 'regulatory' side of child law there has also been little impact as yet except in the context of children's hearings (discussed above under civil justice), although in one case the court raised the question of amendment of the legislation on freeing for adoption in order to strike a better balance between the interests of the child and those of the natural parents ( see 3.38).

Family and child law: possible challenges

4.18 There are several areas where challenges might be expected but have not yet been made:

Rights to marry and to found a family

4.19 There is an argument that the provision in Scots law requiring a delay of 5 years in the recognition of divorce on the grounds of separation, where one party to the marriage withholds consent to divorce, may be disproportionate; but proposals from the Scottish Executive announced recently to amend Scots law in this regard will address such a concern. It is still unclear whether the wife of a convicted prisoner, who is sentenced to a lengthy period of imprisonment, could rely upon Article 12 to obtain at the very least the right to seek artificial insemination facilities.

Making of child protection orders, etc

4.20 Challenges to the removal of a child from its parents immediately after its birth on the ground that such action is disproportionate and unwarranted have failed, but such disposals may not be entirely consistent with ECHR case law ( see 3.38-3.39). There is also the question of the rights of the natural parent in adoption discussed above.

4.21 This judgment was the first finding by the European Court of Human Rights of a breach of Article 3 from Scotland and raises issues for public authorities in terms of their positive duties to protect children from abuse and possible consequential liability for any failure to meet Article 3 obligations. The case also raised issues under Article 8 regarding the provision of guidance on the complex matter of information sharing (an issue which has also arisen in other recent circumstances such as the Caleb Ness/City Council of Edinburgh inquiry). The sharing of information among the different agencies will assume an increasing relevance following the commencement of the Freedom of Information (Scotland) Act 2002.

"Anti-social behaviour" orders

4.22 With particular regard to the matters of electronic tagging of children and the police powers of dispersal proposed under the Anti-Social Behaviour (Scotland) Act 2004, Article 8 (which covers such matters as the right of development of relationships, personal autonomy, physical and psychological integrity) will call for particular consideration of compatibility with the Convention tests of legality, legitimate aim and "necessary in a democratic society", matters which are likely to be assessed in terms of the United Nations Convention on the Rights of the Child.

Education

4.23 As yet there has been little impact upon the public education system, and challenges to, for example, the closure of schools and to exclusion of pupils on disciplinary grounds have been rejected.

Health care

4.24 As yet, there has been little impact on the public health care system. However, challenges might be anticipated in at least two areas.

Entrapped patients

4.25 Article 8 is of relevance to the problem of "entrapped patients" at the State Hospital who are no longer recognised as needing maximum security conditions, but for whom there are no alternative medium security facilities available. Whilst this issue is currently the subject of a case before the Scottish courts and has been recognised by the Mental Health (Care and Treatment) (Scotland) Act 2003, such attempts are unlikely to satisfy the need for a remedy for such patients allowing Article 8 arguments to be addressed.

Access to health care and treatment

4.26 Article 2 and access to adequate life-saving care or treatment has been the subject of UK applications to the European Court of Human Rights. Given current concerns over adequacy of accident and emergency services, "postcode lottery" and emergency maternity services it can be anticipated that such cases will be brought before the domestic courts at some point. Claims of negligence would likely argue that the Convention test of "adequacy" (as opposed to the established higher domestic threshold of negligence) should now be applied by the domestic courts.

Environment and planning

4.27 There have been a number of challenges in the areas of development planning. The most significant was the challenge to the decision-making processes in planning cases as incompatible with Article 6 in County Properties v Scottish Ministers, 85 which, if successful, would have required considerable revision of existing arrangements. However, the House of Lords rejected similar arguments in the Alconbury case, 86 and there have been no major changes to the planning system prompted by the Convention.

Immigration control

4.28 The major impact to date here is in the high volume of cases raising human rights arguments compared to other areas of public administration. However, many cases turn on their own facts and their outcomes have not called into question existing laws or policies. The high number of cases in which the objective is to prevent the removal of individuals from the UK is likely to continue. The restrictions on access to the courts which recent legislation has implemented may also result in more cases being taken to Strasbourg. The provisions in recent legislation which threaten to remove financial support and accommodation from failed asylum seekers and their families unless they carry out community work have attracted adverse comment from the Parliamentary Joint Committee on Human Rights are also likely to encourage challenges on human rights grounds. 87

General issues in public administration

4.29 The preceding sections have given a sectoral analysis. However, there are some general issues which are relevant across the public sector. We have identified four areas of general applicability from the cases.

Giving adequate reasons for decisions

4.30 Two cases involving challenges to refusals to give permission for public processions highlighted the importance of councils basing their decisions on correct facts, to act intra vires and to give relevant and sufficient reasons.

Ensuring fairness in decision-making

4.31 The importance of 'equality of arms' has been discussed above, and this has particular importance in decision-making by local authorities, for example, in one of our cases, a report had only been made available at the start of a case conference to consider the taking of a child into care.

Delays in the determination of civil rights

4.32 Challenges to the time taken to determine cases have arisen outwith criminal proceedings. In one planning case, delays of some 9 years in the determination of an application (the decision still not having been reached) were considered clearly to violate Article 6.

Absence of bias towards an issue or a party

4.33 One of our 'sampled' cases involved the refusal by a licensing authority to renew a public entertainment licence for a health club which described itself as a 'sauna'. The challenge was based in part on an adverse newspaper interview which appeared on the day of the hearing with the deputy leader of the local authority responsible for deciding the application. While the reasons for the dismissal of the action are unclear, it is not inconceivable that Article 6 considerations (including the scope for review of initial decisions) may arise in decision-making by local authorities in a range of instances.

Human rights challenges and the hierarchy of legal norms

4.34 The other question we should address in considering the impact of successful challenges is their impact in terms of the normative framework of the legal system. The cases in our database involve challenges to implementation of Acts of the UK Parliament, challenges to Acts of the Scottish Parliament, challenges to subordinate legislation, challenges to administrative policies, procedures and practices and cases which have no wider significance.

Challenges to the implementation of Acts of the Westminster Parliament

4.35 Cases arising under the Human Rights Act or Scotland Act have given rise to questions as to the compatibility of statutory authorisation for such matters as the provision of jury trials in civil cases, limitations on access to court on persons judged vexatious litigants, confiscation of assets under proceeds of crime legislation, appointment of temporary sheriffs, and reverse onus of proof provisions of legislation affecting 'known thieves' in possession of tools which could be used in housebreaking. However, no case in our database resulted in a declaration of incompatibility.

Challenges to Acts of the Scottish Parliament

4.36 There have been two direct but unsuccessful challenges to legislative provisions of the Scottish Parliament (in respect of mental health detention and the prohibition of hunting with dogs). There have also been challenges to the implementation of Scottish legislation which have arisen in cases involving the requirement to give notice of the defence case in rape trials as a violation of the right against self-incrimination, and the imposition of a 'punishment part' in mandatory life sentences. Only in the latter instance have challenges been successful in terms of the particular circumstances of individual cases 88.

Challenges to subordinate legislation

4.37 There have been surprisingly few cases involving challenges to subordinate legislation. In particular, a challenge that the amount of legal aid fees fixed by subordinate legislation was inadequate under fixed payments regulations, and, thus, amounted to a deprivation of the right of representation, was rejected ( see 3.34).

Challenges to administrative policies or to procedures and practices where it would not be necessary - if the challenges were upheld - to change the legislative basis of the policy, etc

4.38 The successful argument at first instance that 'slopping out' in prisons was incompatible with Convention rights is one clear example of such an instance. Other cases falling into this category include challenges to decision-making processes by local authorities (such as the giving of reasons and the duty to ensure that parties have an adequate opportunity to participate).

Cases which have no wider significance beyond their own resolution, and are thus largely illustrative of the application of Convention principles in domestic cases

4.39 Examples of such cases include the numerous cases requiring the application of Strasbourg case law concerning delay in the determination of civil rights or criminal charges under Article 6.

JUDICIAL APPROACHES TO THE CONVENTION RIGHTS

4.40 This section of our report seeks to identify the approaches adopted by domestic courts in interpreting Convention rights since the entry into force of the Scotland Act and Human Rights Act. The issue is potentially important because of the nature of the juridical relationship between the case law of the Convention institutions and the case law of the domestic courts. On the one hand, the Strasbourg court does not see its task as that of imposing a uniform level of implementation of human rights guarantees across European states. The doctrine of margin of appreciation applied by the Strasbourg institutions in interpreting the Convention means that states are allowed a certain, albeit limited, measure of discretion in deciding whether legislative, administrative or judicial action contravenes one of the Convention guarantees. 89 If the Strasbourg case law represents only a minimum standard that raises the possibility that the Scottish courts might apply more demanding standards than the Strasbourg institutions in determining the compatibility of legislative or administrative measures with the Convention.

4.41 On the other hand, it is clear from Section 2 of the Human Rights Act that the Scottish and English courts are obliged to take the Strasbourg case law into account but are not bound to follow it. Although it is expected that courts will generally follow the decisions of the Strasbourg court, this leaves open the possibility that a court might choose not to do so and find that there had been no violation of Convention rights in circumstances in which the Strasbourg jurisprudence suggests that there would be a violation. Put more bluntly the issue discussed in this section is whether the standards applied by the Scottish courts in applying the Conventions' guarantees are the same, 'higher' or 'lower' than those applied by the Strasbourg court. Therefore, this section considers post-devolution case law under three headings:

instances where court decisions have exceeded the minimum level of Convention compliance

instances where the courts have refused to extend Convention jurisprudence and

instances where court decisions have not fully addressed Convention concerns.

4.42 When considering the first possibility (domestic courts applying more exacting human rights standards) it is important to note that, strictly speaking, the doctrine of margin of appreciation has no application to national courts specifying as it does the relationship between international institutions and national authorities. However, although national courts are not required to defer to legislative and administrative bodies within the state on this account, both the Scottish and English courts have developed the idea of judicial deference to legislative determinations on general democratic grounds, 90 and this idea has undoubtedly played a part in the rejection of some challenges.

Instances where court decisions have exceeded the minimum level of Convention compliance

4.43 There has been some indication of Scottish courts applying a more demanding test than the Strasbourg court in two areas.

Fairness in immigration hearings

4.44 The willingness to consider certain issues concerning immigration and deportation as giving rise to fair hearing considerations akin to the requirements of Article 6 is hinted at in certain cases, even although the Strasbourg Article 6 case law clearly indicates such cases do not strictly give rise to the determination of a 'civil' right.

Prison detention conditions

4.45 The decision in a Napier v Scottish Ministers discussed above (now subject to an appeal) was widely assumed in the media to be likely to lead to a significant number of additional challenges by individuals who had been subjected to similar detention regimes; but the threshold test for a violation of Article 3 is relatively high. It is not clear what line the Strasbourg Court would have taken, but a reasonable interpretation of recent jurisprudence would suggest that the detention conditions endured still would fall short of the minimum level of severity required to found a violation of Article 3. However, the decision in this particular case may be more properly seen as turning on its specific facts and, therefore, not a clear case of applying higher standards.

Instances where the courts have refused to extend Convention case law

4.46 By contrast, there have been several cases in which courts have refused to apply a stricter standard for assessing violations than the existing Strasbourg case law suggests.

Testing the fairness of proceedings

4.47 The approach of the Strasbourg Court to Article 6 seems to have been adopted in a number of cases involving such matters as disclosure of evidence by the prosecutor; the opportunities to make observations on evidence submitted by the other party to proceedings; the admissibility of evidence obtained in violation of Article 8; the assessment whether oral evidence had been obtained in a fair manner; and in the refusal to treat real and oral evidence as giving rise to the same considerations.

Consideration of the proceedings as a whole

4.48 From the perspective of the Strasbourg Court, the fairness of civil or criminal proceedings falling within the scope of Article 6 must be judged as a whole, therefore, all stages of domestic proceedings are considered, so that defects in earlier procedures may be remedied subsequently by an appellate court. While this is an understandable approach from the perspective of an international tribunal, it may be less so from a domestic perspective, particularly when public authorities are expected to apply Convention guarantees in decision-making. In one key case involving a challenge to planning determinations by ministers, the court considered that, since these decisions were themselves subject to judicial review, earlier defects (here, as to the independence of decision-makers) could in turn be cured on review. The same approach has been adopted in respect of decision-making by professional disciplinary tribunals. This approach perhaps begs the question whether it is entirely satisfactory as it presupposes the willingness (and ability) of a dissatisfied party to engage in further legal challenge to secure Convention protection.

Jury awards

4.49 A number of challenges to the involvement of juries in determining possible solatium awards, on the ground that they did not give reasons for their decisions, have been made but have not succeeded, principally on the basis that awards are subject to appeal if unreasonable (or alternatively, that significant variation in awards may be expected).

4.50 There is also a noteworthy variant of this category: in two cases in our database, concerning the question whether the application for (or the making of) a confiscation order involves the determination of a criminal charge, the reasoning of the Scottish courts was subsequently followed by the European Court of Human Rights .

Instances where court decisions have not fully addressed Convention concerns

4.51 Under this heading we consider whether there is any evidence of the Scottish courts applying a lower standard in interpreting the Convention rights than would the Strasbourg court. However, for various reasons assessing whether there is a divergence between the Strasbourg court's interpretation of the Convention and that of a Scottish court is not an entirely straightforward task. One is that there may be doubt whether the state action falls within the margin of appreciation accorded to states. The Strasbourg court gives the Convention a dynamic or evolutive interpretation which means that older authorities cannot always be treated as reliable guides to the minimum standards today. Another is that there may be no cases dealing with closely analogous circumstances to the instant case. Subject to those caveats our review of the cases suggests that there are only very few clear examples of the Scottish courts applying a lower standards than would the Strasbourg court:

Self-incrimination

4.52 The leading case of Stott v Brown,91 which concerns the compatibility of Section 172 of the Road Traffic Act 198 with Article 6 has already been discussed. As noted at 3.27, there has been some debate as to whether the decision is compatible with existing Strasbourg case law.

Bias on the part of members of juries

5.53 Arguably, not all cases have followed more recent Strasbourg jurisprudence which indicates a heightened concern that justice can objectively be seen to have been done.

Secure accommodation for young people

4.54 We have already noted the concern raised by the decision in S v Miller (No 2). Detention of a child in secure accommodation which contains other minors convicted by criminal courts of serious offences would not be treated by the Strasbourg Court as falling under the heading of educational supervision if the essential nature of the regime is punitive rather than educational ( see 3.18).

Procedural safeguards in child placement, decision-making etc

4.55 The importance of fair procedures may also arise in respect of Article 8 guarantees of respect for family life, but certain decisions seem not to reflect this. In one case, for example, the court considered that proceedings seeking to remove a child from its mother shortly after birth, without the right of the parents to be present at the hearing, did not necessarily result in a breach of Convention rights as it may be in the child's best interests that the parents be absent.